Tobias Dhova v Maranatha Ferrochrome

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/511/2014
HARARE, 27 FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/511/2014

HARARE, 27 FEBRUARY 2014 &			  CASE NO LC/H/366/2013

29 AUGUST 2014

In the matter between:

TOBIAS DHOVA							    APPELLANT

Versus

MARANATHA FERROCHROME					  RESPONDENT

Before The Honourable D L Hove	:	Judge

For the Appellant		J Masango	(Legal Practitioner)

For the Respondent	S Bhebhe   (Legal Practitioner)

HOVE J:

This is an appeal against an arbitral award.

The appellant was employed by the respondent as a Coded Welder on 14 March 2011.

On 23 August 2011 the appellant was injured whilst on duty when a furnace erupted. He suffered severe burns. The appellant sought to be compensated in terms of the contract between the parties which the appellant has submitted carried an added security of compensation for disability or death which was over and above the compensation offered by National Social Security Authority (NSSA).

The respondent denied responsibility. The matter went up for conciliation. There was a settlement. Afterwards it was alleged the employer refused to comply with the terms of the settlement agreement and the matter was referred for arbitration.

Page 35 of the record is the reference to arbitration, it captures the dispute as “an allegation of non-payment of insurance cover as per contract of employment section 15”. This was the dispute that was between the parties.

The arbitrator dismissed the appellant’s claim and the appellant was aggrieved. He noted an appeal to this court. The only grounds of appeal that are properly before the court for discussion in these proceedings are two and these are:

3.3	The arbitrator erred in not finding that having been induced into employment with the respondent’s comparatively attractive terms of employment regarding insurance, the appellant legitimately expected fulfilment of this representation.

4.4.2	The arbitrator’s finding on the meaning of the certificate of settlement concluded at conciliation is a misdirection on the facts which is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.

The dispute as earlier alluded to was that the appellant was pushing for the payment of an insurance cover in terms of section 15 of the contract of employment. The arbitrator then couched the issue as “whether or not Maranatha should pay insurance cover as per agreed conciliation.”

It is not clear why the arbitrator phrased the dispute as such when the claim placed before him was whether or not the employer ought to have compensated the appellant in terms of contract of employment entered into between the parties

The employer’s representative also submitted that the issue was whether or not the company should pay. This was the dispute referred and the arbitrator ought to have addressed that dispute. The employee’s dispute was never with R and M Insurance but with the employer who had made a representation that in case of accident or death, they would pay in terms’ of clause 15 of the contract of employment.

The employer argues that the Labour Court route is not the appropriate route to address the dispute as this was insurance law.

This in my opinion is a mischievous submission. Clearly the dispute is whether or not the employer should and can be bound by a contract of employment it entered into with the appellant. The employer represented to the employee that he would be paid over and above the NSSA compensation and the employee accepted that offer. This court is being called upon to enforce the contract between the parties and that cannot be interpreted to mean that the court is being asked to delve into the law of insurance. The dispute is clearly a Labour Court dispute. The basic issue is whether or not that representation was made and whether or not it was accepted by the employee and finally whether or not the employer should be bound to the contract of employment it entered into.

The arbitrator grossly misdirected herself in failing to address the real issues placed before her. She further misdirected herself by going off the mandate. Page 47 clearly states that the dispute was “non-payment of insurance cover as per contract of employment”.

The certificate of settlement read:

“The Parties to this dispute have agreed that this issue should be put to finality within 30 days and by that period money from R M Insurance should have been disbursed.

Failure to this, this issue will be referred to arbitration.”

At conciliation, the settlement to the dispute between the parties (non-payment of insurance cover as per contract of employment section 15) was that the parties had agreed to settle within 30 days and by that 30 day period money from R M Insurance ought to have been paid failure of which the issue (between the parties) will be referred to arbitration.

It is the arbitrator who now changed the dispute to “whether or not Maranatha should pay insurance cover as per agreed conciliation?”

The dispute between the parties was not the interpretation of the agreement. It was a term of the conciliation agreement that should the employee not be paid then the dispute will be referred not that the interpretation will be referred.

It was never a dispute between the parties that R M insurance be made a party to the dispute. No contractual relationship existed between R M Insurance and the employee. If there existed a relationship between the employer and RM Insurance then it was up to the employer to enforce their rights against R M Insurance. But as far as the employee was concerned he had rights against the employer in terms of a signed contract of employment.

The contractual provision in question reads as follows:

“Clause 15

The company operates a Group Life Cover Insurance Scheme. You will be covered by the company at no cost to yourself for accident, disability and death insurance. The details of the Scheme will be covered in a separate letter to you.” (my emphasis)

The parties signed and entered into an agreement in which the above is its Clause 15. A literal meaning of that clause is that the company is in an insurance scheme with some insurance company and the employee would be covered in terms of that arrangement between his employer and someone else in case of accident, disability and death. This would be at no cost to himself. He would be covered by the company.

It is an accepted principle of interpretation that words should be given their literal meaning. The primary rule of interpretation is that if the meaning of the words is clear, they should be given that clear meaning. See in this regard the case of Principal Immigration Officer v Hawabu 1936 AD 26.

This is not an issue requiring the interpretation of a statute but the same principles apply when we seek to find the intention of parties to a contractual agreement in cases of dispute.

The parties agreed that in case of injury or disability (as is the case now), the company would cover the employee. That is the agreement between the parties and the parties must be held to that agreement. It is the company that was to enter into a contract with a third party to enable itself to compensate the employee in cases of injury, death or disability.

The arbitrator’s finding was therefore grossly unreasonable for how could the employee claim from R M Insurance when no contract existed between the two?

The employer offered and the employee accepted and the parties entered into the agreement.

The role of the court in interpreting written texts or statutes is always to ascertain the intention of the parties. See the case of Baboo Bhula v Zimbabwe Bata Shoe Company Ltd LC/MD/05/09.

The doctrine of sanctity of contract must also be upheld in this case. The employer is simply trying to dodge its responsibility to “cover’ the employee now that he is injured and disabled. This court cannot allow that. These principles are part of our law. See E Jinga v David Saunyama & Moonwave Properties t/a Maps Asset Management, Guzha Township, Chikwanha and Chitungwiza Municipality HH-103-2013.

I am satisfied therefore that grounds number 3 and 4 of the appellant’s grounds of appeal have merit and must be upheld.

In the result, the appeal succeeds with costs and the arbitral award is set aside in its integrity.

The employer shall compensate the appellant in terms of clause 15 of the contract of employment between the parties.

Should the parties fail to agree on what is payable in terms of clause 15 of the contract, either of the parties can approach the court for quantification.

I Murambasvina Legal Practitioners, appellant’s legal practitioners

Kantor & Immerman, respondent’s legal practitioners